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J. Van Der Kroef on the Sovereignty of Indonesian States: a Rejoinder

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J. Van Der Kroef on the Sovereignty of Indonesian States: a Rejoinder J. van der Kroef On the sovereignty of Indonesian states: a rejoinder. (Zie nr. 1562) In: Bijdragen tot de Taal-, Land- en Volkenkunde 117 (1961), no: 2, Leiden, 238-266 This PDF-file was downloaded from http://www.kitlv-journals.nl Downloaded from Brill.com10/03/2021 01:24:14AM via free access ON THE SOVEREIGNTY OF INDONESIAN STATES: A REJOINDER s always I have read Professor Resink's recent essay on the Indonesian states 1 with great interest. Unfortunately, per- hapAs even more in this latest essay than in most of his other publi- cations, the narrowly focussed jurist, painstakingly gathering precedent, gets in the way of the more widely oriented historian, alert to the total pattern of historie forces and careful to consider the context of each utterance and action. The essay under discussion also contains (pp. 331—332, note 56) a reply to an earlier criticism,2 which I had already occasion to make of Resink's work, and so I may perhaps be permitted to cast this rejoinder in terms of a more comprehensive objection to the purport of Resink's latest paper. There are three points in Professor Resink's essay which, I think, require consideration and to which this rejoinder is addressed. First there is an interpretation of certain statements made by Margadant, Colijn, Verbeek, and others, which leads to the assertion (p. 332, note 56) that these statements question the principle of Dutch sover- eignty in the Indonesian archipelago, specifically in relation to the Indonesian states. Secondly, there is the analysis of how (what Resink calls) the "myth" of a three centuries long présence Nêerlandaise in Indonesia came into being, a process reflected in the work of Stapel and — implicit in Resink's view — further aided and abetted by that historian and others who in the 1930's, under the threat of international developments and of "communistic and nationalistic movements" (p. 341), apparently came to have a different perspective of the Indonesian past and its future than the one prevailing earlier. And thirdly, there is Resink's explication of Verbeek's analysis of the wor- ding of Indonesian texts and of Indonesian interpretations dealing with the relationship between the Dutch and the Indonesian states as 1 G. J. Resink, " 'Inlandsche Staten in den Oosterschen Archipel' (1873—1915)/* BKI, vol. 116 (1960), pp. 313—349. 2 J. M. van der Kroef, "On the Writing of Indonesian History," Pacific Affairs, vol. 31 (19S8), pp. 352-J71. Downloaded from Brill.com10/03/2021 01:24:14AM via free access ON THE SOVEREIGNTY OF INDONESIAN STATES : A REJOIN'DER. 239 laid down in various contracts between them, an explication which culminates in Resink's emphasis on the "legal counterweight" (p. 331) which the Indonesian version of the treaties between Dutch and Indonesian potentates provided to the latter. It is the burden of this rejoinder that (1) Resink's obscuration of the concepts of sovereignty and of "semi-sovereignty" (pp. 330, 343) has led — especially from the point of view of the law of nations (Resink's own favorite angle of vision) — to a distortion of the formal- legal, as well as the actual, relationships prevailing in Indonesia between Indonesian rulers and the Dutch, and more particularly to a distortion of the views of Margadant and Colijn, while Resink's con- sideration of the latter's memoranda of 1907 and 1909 on the state of affairs in the Buitenbesittingen totally disjoints Colijn's actual views on the public legal structure of the Dutch colonial establishment; (2) that the "myth" of a three centuries long Dutch domination of Indonesia is no mere product of a reaction to contemporary nationalistic or other political pressures, but is instead the result of a much older public consciousness in the Netherlands and of the natural dynamics inherent in the process of colonial government in nineteenth century Indonesia itself; and (3) that the attempt to justify as "legal counter- weight" the Indonesian texts and possible Indonesian interpretations of contractual relations with the Dutch is vitiated by the reality of the contractual relationship in the indigenous feudal culture pattern, and by the actual views of these texts taken by Indonesian rulers, as testified to by competent contemporary authority. I In analyzing the concept of sovereignty in international law since Bodin one encounters a progressive acceptance of the relativity of its function. Attenuation of the principle has gone so far in recent decades that consideration of sovereignty as being merely a matter of degree has reached a point exemplified by Starke's assertion that 'Souver- eignty' is therefore a term of art rather than a legal expression capable of precise definition,"3 a view which other authorities to various degrees seem to share.4 Despite these caveats there is, however, an 3 J. G. Starke, An Introduction to International Law (4th ed., London, 19S8), p. 83. 4 E.g. in a popular American university text one meets the assertion: "Argu- ments about the location and divisibility of sovereignty are unproductive." Conley H. Dillon, Carl Leiden, and Paul D. Stewart, Introduction to Political Science (New York, Toronto, 19S8), p. 38. Downloaded from Brill.com10/03/2021 01:24:14AM via free access 240 J. M. VAN DER KROEF. international legal aspect to the sovereignty problem, which in its colonial context is especially important. This aspect is, of course, the limitation of independence imposed on a state in the conduct of its foreign relations. The limitation of the international legal personality of states, which, according to one modern commentator, results in that they "cannot be considered as sovereign states," though still subjects of international law, is most apparent in the international legal figure of the protectorates, the distinguishing feature of which usually is that the protector state "becomes responsible for the conduct of the foreign affairs of the protected state," accepting international re- sponsibility for it so that "third states are debarred from making their claims direct against the protectorate."5 No student of international law has failed to stress the signifiance and the great variety of pro- visions in treaties between protector states and their protectorates, nor ignored the spheres of authority that can still be left to the protec- torates. But likewise, there is none who would see the protector- protectorate relationship as preserving the complete equality of the legal personality of both parties, or who does not consider that, precisely because the protectorate's independence in foreign relationship has come to an end, the protectorate's condition of sovereignty among other sovereign powers has either vanished or else has been relegated toward a different and subordinate order.6 Though theoretically a distinction may be drawn between suzerain- vassal state relationships and protector-protectorate relationships, in practice this distinction has little validity, because, as Ross has indi- cated, there is a tendency to make the powers of responsibility of the protector state in its relationship toward the protectorate as "unlimited" (the word is that of Ross) as are the powers of the suzerain state toward 6 Georg Schwarzenberger, A Manual of International Law (New York, 1951), pp. 32—33. 18 Like all generalizations this one has its exception or two. The textbook illustration, which may well be grist to Professor Resink's mill, is, of course, Duff Development Co. Ltd. versus Government of Kelantan (see Great Britain, House of Lords, 1924 Law Reports, A.C. 797) in which the British govern- ment declared that despite the British treaty with Kelantan of October 22, 1910, by which Kelantan was enjoined from entering into any foreign relations except with the United Kingdom, Kelantan as a sovereign state in the Malay peninsula could claim certain jurisdictional immunity in the territory of another state. It is still a point of argument whether this pronouncement represented a significant variation on the protectorate pattern or not, or was in total violation of the traditional pattern of protector's rights. Downloaded from Brill.com10/03/2021 01:24:14AM via free access ON THE SOVEREIGNTY OF INDONESIAN STATES : A REJOINDER. 241 its vassal state.7 In the pattern of Dutch power over Indonesian states suzerain-vassal and protector-protectorate relationships often occur jointly in the same contractual agreement (e.g. in the treaty of 1731 between the Dutch East India Company and the "pongoulous" of Passeriboe on Sumatra's West Coast, and in the treaty of the same year between the Company and the ruler of Boelang and Mogondo).8 But whatever the wording of the relationship, the international legal perso- nality of vassal state or protectorate, though by no means necessarily wholly gone, (especially in the view of older writers), has as a result of its contractually defined dependence relationship nevertheless been seriously impaired. In the opinion of recent students, such as Kelsen, even the acknowledged area of domestic autonomy still allowed the vassal (an area not always accurately designated with the term "sover- eignty") or protectorate cannot constitute a claim to sovereign standing in international law :9 By a treaty concluded by two states, one of them may be placed under the socalled protectorate or 'suzerainty' of the other. By 7 Alf Ross, A Textbook of International Law (London, New York, Toronto, 1947), p. 262. The similarity between suzerainty-vassal and protector-protec- torate relationships is also stressed by older authorities
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